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The Virginia State Bar has proposed an ethics opinion on what a lawyer must do after discovering that opposing counsel filed AI-hallucinated law or facts, including when a bar complaint becomes mandatory
Every AI ethics opinion so far has been addressed to the lawyer using the tool. This one is addressed to the lawyer on the other side of the case, and the harder half of it is not whether you may report your opponent but when you must.
Bottom line: A draft opinion published for public comment, not yet binding. It declines to set a bright-line rule: whether to notify the court or a disciplinary authority requires professional judgment, taking into account the seriousness of the errors and other relevant circumstances.
Who this affects: Every lawyer litigating in Virginia, and lawyers admitted elsewhere who appear there, since the opinion notes a report may be owed to both the Virginia State Bar and an out-of-state bar of which the lawyer is a member.
Issue date: Published for comment 27 May 2026. Written comments were due to the Acting Executive Director of the Virginia State Bar by 10 July 2026. The opinion remains a draft.
What changed: Nothing yet. The proposal applies existing Rules of Professional Conduct to a new fact pattern rather than creating an AI-specific duty.
Analysis: The centre of gravity is Rule 8.3(a), which makes reporting mandatory, not discretionary, once its two-prong test is met. The draft's answer is that failure to verify AI outputs may violate several rules, but whether any given instance raises a substantial question as to honesty, trustworthiness or fitness is a judgment call. That leaves the reporting lawyer exposed on both sides: under-reporting risks Rule 8.3(a), over-reporting risks Rules 3.4(i) and 3.4(j).
Primary sources: Proposed LEO 1902, draft opinion for public comment (PDF) · Virginia State Bar notice seeking comment
- Instrument
- Proposed Legal Ethics Opinion 1902: Duties When Opposing Counsel Fails to Review and Correct Generative Artificial Intelligence (AI) Outputs; Diligence; Competence; Duty to Report
- Authority
- Virginia State Bar, Standing Committee on Legal Ethics
- Jurisdiction
- Virginia, United States
- Status
- Draft opinion for public comment. Comment period closed 10 July 2026. Not adopted.
- Bindingness
- None at present. A Virginia legal ethics opinion becomes authoritative only on approval, as proposed LEO 1901 on AI and reasonable fees was approved by the Supreme Court of Virginia.
- Rules analysed
- Rules 1.1, 1.3(a) and 1.3(c), 3.1, 3.3, 3.4(i) and 3.4(j), 1.6(c)(2), 8.3(a), 8.4(c) and 8.5(a)
- Issue date / next deadline
- Published 27 May 2026; comments closed 10 July 2026. No adoption date announced.
- Judicial notice
- Cited in a footnote to the Court of Appeals of Virginia's published opinion in LPC Commercial Services, LLC v. Ar-Razzaaq Properties, LLC, 25 August 2026
- Editorial Note
- Informational analysis for working professionals, not legal advice. Confirm how any rule applies to your situation with qualified counsel.
- Primary source
- https://vsb.org/common/Uploaded%20files/docs/20260527-leo-1902-proposed.pdf
The gap it fills
The draft opens with the observation that ethics guidance on AI has understandably focused on the obligations of the users of the technology. Its premise is that misuse in the court system also implicates duties for the lawyer on the other side, who has discovered, or who should have discovered, that opposing counsel failed to correct AI outputs.
It frames two questions. Does an attorney violate their duties of diligence and competence by failing to identify misstatements of law or fact in an opponent's filing and advise the court? And does an attorney have a duty to report opposing counsel to the state bar if the attorney has reliable information that the opponent filed a pleading containing AI-hallucinated misstatements of law or fact?
The framing is notable for treating discovery as expected rather than fortuitous. The conclusion states that a lawyer diligently and competently representing a litigant is likely to identify misstatements of fact or law present in an opposing party's court filings. That does work: it makes it harder to say later that you simply did not notice.
The draft also records why even small instances matter, in a footnote reasoning that a hallucinated citation in a brief risks being incorporated into a court's decision if the court is neither made aware of it nor independently discovers the non-existent case.
Telling the court
On the first question the draft works through the diligence and competence rules. Rule 1.3(a) requires reasonable diligence in representing a client, and Rule 1.1 requires the thoroughness reasonably necessary for the representation, with the comment to Rule 1.3 directing commitment and dedication to the client's interests.
It also addresses the certification regimes that some courts have adopted, under which a filing must certify whether AI was used in research, drafting or other preparation, or affirmatively certify that it was not. Where a lawyer is aware that an opponent has failed to submit a required certification, or has submitted an inaccurate one, the draft says the lawyer should consider advising the court of the opponent's oversight.
Note the verb. It is should consider, not must. This is the point at which the draft declines to create the bright-line duty that some practitioners expected, and it is likely to be the most contested part of the proposal in the comments.
When reporting becomes mandatory
The second question is the sharper one, because Rule 8.3(a) is not permissive. A lawyer who believes another lawyer has violated the Rules is generally permitted to file a bar complaint but not necessarily required to. Under Rule 8.3(a), reporting is mandatory where the lawyer has reliable information that another lawyer committed a violation raising a substantial question as to that lawyer's honesty, trustworthiness or fitness to practise law.
The draft applies the two-prong test drawn from earlier Virginia opinions: the lawyer must have information indicating that another lawyer's conduct violated a rule, and the violation must raise a substantial question as to honesty, trustworthiness or fitness in other respects.
On the first prong it is direct. Failure to verify AI outputs before filing may potentially violate several rules, including Rule 1.1 and Rule 1.3 on competence and diligence, Rule 3.1 where a hallucination inadvertently produces a frivolous legal position, Rule 3.3 on candour to the tribunal, and Rule 8.4(c).
The second prong is where judgment enters, and the draft leans on the comment to Rule 8.3 that the rule limits the reporting obligation to offences a self-regulating profession must vigorously endeavour to prevent, so that a measure of judgment is required.
The countervailing prohibitions
The draft is careful to fence the duty on the other side, and this is the practical value of it for a litigator deciding what to do on a Friday afternoon.
Rule 3.4(i) prohibits threatening a bar complaint solely to obtain an advantage in a civil matter. Rule 3.4(j) prohibits taking action on behalf of a client where the lawyer knows, or where it is obvious, that the action would serve merely to harass or maliciously injure another. Rule 1.6(c)(2) bars a report that would require unauthorised disclosure of confidential information, and Rule 1.3(c) bars one that would prejudice or damage the lawyer's own client.
On timing, the draft addresses the awkwardness of reporting an opponent mid-case. An attorney's motivation may look suspect while a civil matter remains unresolved, but the lawyer is not required to wait until it is resolved, provided the motive is to discharge the mandatory reporting obligation rather than solely to use or threaten a complaint as leverage.
On forum, it notes that the appropriate authority may include both the Virginia State Bar and an out-of-state bar of which the attorney is a member, citing Rule 8.5(a).
Where it stands, and why it matters now
The opinion is a draft. The comment period closed on 10 July 2026, and a Virginia legal ethics opinion becomes authoritative only on approval, the route taken by proposed LEO 1901 on reasonable fees and the use of AI.
Its practical significance rose sharply on 25 August 2026, when the Court of Appeals of Virginia handed down a published opinion sanctioning a lawyer whose brief contained twenty-five phantom quotes, and recorded in a footnote that the Virginia State Bar had recently introduced LEO 1902 for comment.
That case illustrates why the proposal matters. The court expressly noted that opposing counsel had never raised the phantom quotes with it, and the absence of any expense incurred contesting the point was among the reasons the sanction was educational rather than financial.
If LEO 1902 is adopted in its current form, that silence stops being neutral. It becomes something the silent lawyer has to justify by reference to professional judgment, the seriousness of the errors, and the circumstances.
If you litigate in Virginia, the operative question changes from what happens if my brief is wrong to what I owe when theirs is. Three things to settle in advance rather than in the moment. First, decide who in your team assesses an opponent's suspected hallucination against the Rule 8.3(a) two-prong test, because that duty is mandatory once triggered and the draft says a diligent lawyer is likely to spot such errors in the first place. Second, document the judgment you reach, since the draft's standard is professional judgment on seriousness and circumstances rather than a rule you can point at. Third, remember the fences: a complaint filed solely for advantage or merely to harass, or one requiring unauthorised disclosure of confidential information or prejudicing your own client, is prohibited regardless of how bad the opponent's brief was. The opinion is still a draft, so this is preparation rather than compliance.
Source File
https://vsb.org/common/Uploaded%20files/docs/20260527-leo-1902-proposed.pdf
Open the PDF and confirm three things: the header reading Draft Opinion for Public Comment above the title of LEO 1902 with the words Diligence; Competence; Duty to Report; the two numbered questions on the first page about advising the court and about reporting opposing counsel; and the CONCLUSION, which states that whether to notify the court or disciplinary authority requires the attorney to use professional judgment and lists the prohibitions in Rules 3.4(i), 3.4(j), 1.6(c)(2) and 1.3(c).
Whether to notify the court or disciplinary authority of an opponent lawyer's apparently AI-hallucinated errors requires the attorney to use professional judgment, taking into account the seriousness of the errors and other relevant circumstances. Virginia State Bar, proposed Legal Ethics Opinion 1902, Conclusion
FAQ
Is LEO 1902 in force?
No. It is a draft opinion published for public comment on 27 May 2026, with comments due by 10 July 2026. A Virginia legal ethics opinion becomes authoritative only on approval; proposed LEO 1901 on AI and reasonable fees followed that route to approval by the Supreme Court of Virginia.
Does it require a lawyer to tell the court about an opponent's AI errors?
It does not impose a flat duty. It says that where a court requires certification of AI use and a lawyer is aware the opponent failed to certify or certified inaccurately, the lawyer should consider advising the court, and that whether to notify the court is a matter of professional judgment.
When does reporting to the bar become mandatory?
Under Rule 8.3(a), where the lawyer has reliable information that another lawyer committed a violation raising a substantial question as to that lawyer's honesty, trustworthiness or fitness to practise law. The draft applies a two-prong test: information indicating a violation, and a violation raising that substantial question.
Which rules might an opponent have broken by not checking AI output?
The draft lists Rule 1.1 and Rule 1.3 on competence and diligence, Rule 3.1 where a hallucination produces a frivolous position, Rule 3.3 on candour toward the tribunal, and Rule 8.4(c), while noting the list is not exhaustive.
Can a lawyer be penalised for reporting?
The draft identifies four constraints: Rule 3.4(i) on threatening a complaint solely to gain advantage in a civil matter, Rule 3.4(j) on action that would merely harass or maliciously injure, Rule 1.6(c)(2) where reporting would require unauthorised disclosure of confidential information, and Rule 1.3(c) where it would prejudice or damage the lawyer's own client.
Must a lawyer wait until the case ends before reporting?
No. The draft says that although motivation may appear suspect while a civil matter is unresolved, the lawyer need not wait, provided the motive is to discharge the mandatory reporting obligation rather than solely to use or threaten a complaint as leverage.
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